Site Navigation

Site Mobile Navigation

Polar Vision

Almost any commentary on the Supreme Court these days will include an observation about how polarized the court is: how for the first time in history, all the Republican-appointed justices (there are five) are to the right of all the Democratic appointees, and how the two groups diverge (Justice Anthony M. Kennedy occasionally excepted) in many of the court’s most ideologically charged cases.

True enough. The usual implication is that this is a problem for the Roberts court. A recent article by a law professor and a political scientist, Neal Devins and Lawrence Baum, predicts that political polarization on the court is here to stay, and they offer a compelling exploration of its origins and current context. Justice Stephen G. Breyer worried aloud in remarks at the annual meeting of the American Law Institute in Washington last week that members of the court were being viewed as “junior varsity politicians.”

Justice Breyer’s concern is well founded. But the problem goes deeper than the court’s rapidly escalating reputation for partisanship. In fact, the current emphasis on voting patterns obscures rather than illuminates the real problem with the Roberts court: what the court is actually doing. I mean what it’s doing substantively: which cases it chooses to decide, and the decisions it reaches.

It’s tempting for commentators, including journalists and some scholars, to stay on the safe side by talking about process rather than substance. Voting patterns can be displayed on a chart, and no one can question the author’s accuracy or motives. On the other hand, to argue that the Roberts court is hurtling down the wrong path substantively is to make a judgment call that invites pushback and debate. I understand that. This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory. The problem is not only that the court is too often divided but that it’s too often simply wrong: wrong in the battles it picks, wrong in setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance.

I don’t relish connecting these dots; I have sometimes felt like the last person standing who still insisted, even after living through Bush v. Gore, that law and not politics is what drives the Supreme Court. In the newsroom of The Times, I lobbied periodically against the routine journalistic practice of identifying judges by the president who appointed them.

But I’m finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda. The evidence is everywhere: from the way the court invited and then accepted a fundamental challenge to public employee labor unions in Harris v. Quinn, a case argued in January and due for decision any day; to its brick-by-brick deregulation of campaign finance; to its obsession with race and with drawing the final curtain on the civil rights revolution.

I wrote “ideological” rather than “partisan” agenda because there’s something deeper going on than mere partisanship. Congress, after all, reauthorized the Voting Rights Act in 2006 by overwhelming bipartisan majorities in both houses, in a bill signed into law by President George W. Bush. The Bush administration urged the court to uphold the law in one of the last briefs filed before the president left office. It was a small cadre of right-wing activists that pressed the opposing view on the court. Success took a while: The court lost its nerve on that initial round in 2009, but conspicuously kept the door open for a renewed challenge. The result was last term’s Shelby County v. Holder, the 5-to-4 decision that cut the heart out of the Voting Rights Act – which had been the plan all along.

Then there is campaign finance, which didn’t use to be a specifically partisan issue. Senator John McCain of the 2002 McCain-Feingold law, Congress’s most recent attempt to curb the flow of money into politics, is, after all, a prominent Republican. The court upheld the law in 2003 with three Republican-appointed justices, John Paul Stevens, Sandra Day O’Connor and David H. Souter, joining the 5-to-4 majority.

The public was not exactly clamoring to do away with campaign finance regulation, but the Roberts court set about that project almost as soon as Justice O’Connor’s retirement in early 2006, and her replacement by Samuel A. Alito Jr. cleared the way. The majority’s most recent achievement was last month’s McCutcheon decision, abolishing aggregate limits for direct contributions to candidates in federal elections. In the 5-to-4 decision this time, there was no party crossover.

An error has occurred. Please try again later.

You are already subscribed to this email.

Nor was there any crossover in the Town of Greece decision earlier this month, authorizing sectarian invocations at local government meetings. Opening the doors to greater public expression and observance of religion is another central part of the Roberts court’s project. Here, the court has moved a bit more slowly. Three years ago, the United States Court of Appeals for the Fourth Circuit invalidated the practice of public prayer at county board meetings in Forsyth County, N.C. Local clergy members were offering prayers that just happened to be laden with Christian references. The Supreme Court declined to hear the county’s appeal.

But the pause was just temporary. The Town of Greece case didn’t differ from the North Carolina case in any meaningful way. The United States Court of Appeals for the Second Circuit had found the steady diet of Christian prayer at town board meetings to be an unconstitutional establishment of religion. This time, the justices agreed to hear the appeal. Since it was obvious that the majority’s goal was to overturn the Second Circuit’s decision, it was no great surprise that the 5-to-4 opinion did so.

But Justice Kennedy’s opinion for the court was startling nonetheless for its obliviousness to the impact that sectarian prayers can have on those citizens for whom prayer before a government meeting is not “a benign acknowledgment of religion’s role in society” (to quote the opinion) but an affront. “Adults often encounter speech they find disagreeable,” Justice Kennedy said dismissively. This from a justice who in his majority opinion in a Florida death penalty case on Tuesday emphasized the right of a convicted murderer to be treated with “dignity” by having his intellectual deficit assessed meaningfully rather than mechanically. The Constitution’s “protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be,” Justice Kennedy wrote on Tuesday, overturning a death sentence. I was left to wonder about the dignity of the two women who sued Greece, N.Y., on the claim that the price of conducting their business with the town board should not include having to listen to Christian prayers.

The country didn’t need to have the religious culture wars reignited, but thanks to the court, that’s where we now are. Alliance Defending Freedom, the Christian-right group that represented the victorious town, has taken out newspaper ads praising the decision’s “far-reaching implications” and offering its “model prayer policy” that people can press on their local governments. The Supreme Court’s “O.K. to pray” is being quickly and unsubtly turned into a right to pray. The Alliance’s reference to a “long-standing, important tradition of public prayer” isn’t accurate, at least as to its client; the Greece town board observed only a moment of silent prayer until 1999, when for unexplained reasons, the board started inviting local ministers to pray out loud.

It’s impossible to talk about the Roberts court without coming back to race. The majority just can’t leave it alone. Last term, in addition to the Voting Rights Act case, the court reached out in Fisher v. University of Texas to review the affirmative action admissions plan at the flagship Austin campus. The university’s Regents, who not too many decades ago presided over a segregated system, have been trying their best to navigate the shifting tides of affirmative action and find a way to achieve diversity not only in the aggregate, but in the university’s classrooms and across its fields of study.

The majority’s effort to ride the Fisher case into the sunset of affirmative action failed because the case was such a manifestly poor vehicle. It was moot by any objective measure, the recruited plaintiff having already graduated from another university before the court even accepted the case. And the Texas admissions plan is so unusual – guaranteeing admission to the top 10 percent of every graduating high school class while also engaging in some racially conscious tailoring for about one seat out of five – that any opinion would be likely to have only a limited effect elsewhere. So the court was left to nibble around the edges, ultimately sending the case back to the lower court for another look. Its appetite unfulfilled, the Supreme Court will be back for more. (The vote in the Fisher case was 7 to 1; it’s easy to depolarize when you’re deciding very little.)

Professors Devins and Baum, in their article on partisanship at the Supreme Court, argue that the current dynamic is a predictable, even inevitable reflection of extreme polarization in our politics. I don’t think they’re wrong, but it occurs to me to wonder if the flow might also be running in the other direction. I wonder whether the Supreme Court itself has become an engine of polarization, keeping old culture-war battles alive and forcing to the surface old conflicts that people were managing to live with. Suppose, in other words, that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.